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- [00:01]
A
Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. As promised, we will break down that Hamani argument about being an unlawful user of a controlled substance or while in possession of a gun. And then two interim docket decisions. One on elections and congressional districts, another racial gerrymander question mark, and one on parental rights and substantive due process. Did the conservatives suddenly fall in love with substantive due process again? And lastly, our promised war powers discussion. Is that 1973 War Powers Resolution a thing or not a thing? Do you get a free 60 day war pass from Congress? All this and more on Advisory Opinions. I saw this app. I got a hit.
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B
In the new limited series, DTF St. Louis, Jason Bateman, David Harbour and Linda Cardellini star as three suburbanites who spice up their love lives.
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A
Wow.
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B
Don't miss the new HBO Original Limited Series, DTF St. Louis, Sundays at 9 on HBO Max.
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A
Okay, David, before we jump in, I finished recording the audiobook for my book.
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B
Congratulations. That takes a. That's, that's energy, that's effort there.
- [01:31]
A
It was physically demanding in a way. I wasn't expecting to talk non stop for seven hours a day for multiple days in a row.
- [01:39]
B
Yeah, yeah, that's. That's nuts. And then it just blows this seven hour hole in your schedule.
- [01:45]
A
Well, yeah, that for sure.
- [01:47]
B
Yeah, yeah.
- [01:48]
A
But you know, I was in this little tiny little red room. I had a director, a sound producer, and like the director literally just like follows along and, you know, it's very much like being in Hollywood, I think.
- [01:59]
B
Yeah. Oh, yeah. Minimal difference.
- [02:01]
A
Reminder to everyone, if we raise $7,500 for the Supreme Court Historical Society's hometown program for students like Abrielle, Chris Christie is going to come back on if you buy a copy of Last Branch Standing. We are donating $30 to the Hometown program, et cetera, et cetera, et cetera. So get your orders in before March 17th and. And I will report whether we reached our $7,500 goal. David, it's time to jump into Hamani. Hopefully everyone did their homework that we assigned. There was a little animated video to get everyone pumped for the Hamani oral argument laying out the stakes of this case. So 18 USC 922G3 prohibits unlawful users of controlled substances from possessing firearms. Now, a separate part of that talks about people who are addicted. This is not that part that he was charged under. Hamani uses marijuana. Honestly, the record's not great here, but like, we all sort of accept, maybe every other day, but we don't know how much he's using every other day. But yeah, he uses marijuana several times a week and was charged with having a firearm, even though he was not, or at least the government did not contend that he was using marijuana at the time that he possessed the firearm, just that he likes smoking a lot of pot and he possesses a firearm. Separate things. And that's all that's required under the law. So the question is, does this violate the Second Amendment? And again, separate from if he were addicted to a drug, if you were using the drug while possessing the gun, all of those are separate questions, not at issue here. And as the justices said, David, this was kind of a weird test case for the government to bring, I mean, marijuana, first of all, as your drug of choice for this case, and that it's like just all of the facts are the least helpful for the government set of facts you could possibly have for 9.22G3.
- [04:05]
B
Yes, this is the opposite of Rahimi in. In so many ways. I mean, it's the opposite of Rahimi. And so it, you know, if you're going to just apply that the bad man stays in jail shortcut that we often do, which is just a true. We. We've had some justified put back on how broad brush that is, pushback on how broad brush that is. But it is. There's a truism, it's more of a truism around case selection. How do you frame legal issues and what kind of cases set up, what kind of legal issues. But in this case, what you have is a situation where the, in the potential injustice of 922G is more apparent in this case than many other cases. And that was absolutely hovering over this entire thing. And I found the Oriel argument both delightful and really interesting on a substantive level.
- [04:59]
A
I mean, can we get our biases out of the way first? Because I think generally speaking, I'm the libertarian on this podcast and you are more of the social conservative. And so I'm curious how you felt going into it. But I just want to explain because for me, this is. I don't know what to say. I know what I should think about this case. I should be very sympathetic to Hamani in my little libertarian world. And I'm not at all. I'm like, if you use illegal drugs, you shouldn't have a gun. I don't know if this is interesting to anyone. Like, no, like, you're. You've already shown that you're breaking the law. So why are we doing this First
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B
I think I'm every bit, if not more of a civil libertarian than you are. I'm definitely socially conservative, but when it comes to the Bill of Rights, I'm a pretty libertarian dude.
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A
I meant more like life vibes than law.
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B
Yeah, well, life vibes.
- [05:58]
A
Life vibes. I'm the libertarian, the libertine, and you're the good guy. Upstanding churchgoer.
- [06:06]
B
Well, so I had the opposite inclination. I'm absolutely so intrigued by this, Sarah, because I had the absolute opposite inclination. I. I was very much taken by the Justice Barrett analogy of, let's suppose you have a spouse who has an Ambien prescription, and then you. You're struggling to sleep one day, so you take it in Ambien. Your spouse is sitting there. It's. The drug has the exact same effect on you, and it is not there. There's no problem with him taking an Ambien every night under a prescription. And they're going to be able to have a gun. They're going to be. There's no controversy. But the. The moment the spouse takes it for the same purpose, same effect, same degree of danger, then what? They can't own a gun. They can't possess a gun. That strikes me as nonsensical.
- [06:54]
A
Very sensical to me. Yeah, you weren't prescribed the drug, so you are breaking the law. You know it. And. And look, there's. There's a mens rea aspect that we'll get to when we get to Justice Kavanaugh. And I just say all that like, I entered this case not being very sympathetic, but each of the justices had, I thought, illuminated really interesting points in the oral argument. Let's start with the justice who got the most attention in the oral argument, Justice Gorsuch. His point was that the historical threshold for being a habitual drunkard, which is basically our historical analog under the text, history and tradition test that has habitual drunkards could be subject to all sorts of restrictions at the founding. Okay, so the historical threshold for being a habitual drunkard was astronomically higher than what the government claims qualifies as an unlawful user under 922. He noted that the American Temperance Society considered eight shots of whiskey a day merely occasional drunkenness. And then he goes on to say this. John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn't much of a user of alcohol. He only had three or four glasses of wine a night. Okay, are they all habitual drunkards who would be properly disarmed for life under your theory. He asked to Principal Deputy Solicitor General Sarah Harris, and she said no. David, first of all, before we start thinking that all of the founders were just total lushes, important to note that one of the main ways you could die back then was drinking water. Yes, water was very dangerous. So if you wanted any sort of liquid, whiskey was much safer, which is why you're going to see all sorts of whiskey drinking up and through the mid 19th century.
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B
Can you imagine the tolerance? Like if you're. If you're drinking a tankard for breakfast, of ale or whatever, hard cider, whatever it's going to be called. Wow, you're gonna. You got some tolerance, though.
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A
There is also some evidence that their alcohol was far less alcoholic than ours. It had lower alcohol levels. But regardless, Gorsuch's point is, maybe the standard for unlawful user needs to be really, really high. Something like the habitual drunkard, which would have to be a lot more than eight shots of whiskey a day, per the American Temperance Society. Okay, now let's do Barrett. Her core concern was that there was a disconnect between why drugs end up on the controlled substances schedule and actual dangerousness with firearms. She has the Ambien hypothetical that you mentioned. One spouse takes Ambien with a prescription, the other takes it without one. The drug's pharmacological effects are identical. So the disarmament isn't really about the drug making someone dangerous. It's about the lawfulness. And I'm like, yeah, exactly. I don't see the problem here, but. But I get it. You do, and I. And it makes sense to me. I'm not saying it's nonsensical. I totally get the dangerousness point. Brett Kavanaugh, Mens rea. How do you know you're habitual? What does this even mean? Is this sort of a vagueness problem? In some ways? He also points out this. Someone's status as a habitual user versus their action. So, for instance, could you ban someone from owning a car based on this same rationale? To which, again, my answer is absolutely, if you are a habitual user of illegal drugs, we should ban you from driving a car. No problem with that. Actually, same. I don't see the difference between the gun ownership and the driving a car in terms of the reasons for doing it. So I'll be curious whether they distinguish if they uphold this law, which I don't think they're going to, why you would be able to ban someone from possessing a gun but not possessing a car, given the actual effects of drugs on those. Okay. And then here's Alito. Basically his point is alcohol is just different culturally, which of course it is. Right. We have always considered alcohol to be something people can use in various, you know, amounts. Socially. There's a reason one might drink alcohol that's very different from drugs. And then, David, here's Alito and Jackson making some really interesting points, I think, on the flaws of text, history and tradition as a doctrine and as a test. But I'm not sure Alito knows he's making the case. So although Alito, by the way, has never been the most originalist of the justices on the court at all.
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B
Right, right.
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A
But here's him. Most of the commonly used illegal drugs either had not been invented at the time of the adoption of the Second Amendment or the adoption of the 14th Amendment. Heroin was invented in 1874. Cocaine, 1855, methamphetamine, 1893, fentanyl 1959. Marijuana existed. But my understanding is, yeah, hemp was grown for industrial purposes. My understanding is that it was not consumed to any degree by people in the United States until at least the beginning of the 20th century. Is that consistent with your understanding, Ms. Harris? That is correct, Justice Alito. So we don't know what the founders, what those who adopted the Second Amendment or the 14th Amendment thought about illegal drug use per se. Indeed, Justice Alito. All right. And then last one, Justice Jackson, who I think makes again some great points on the Bruin Rahimi problem here. So this is a bit long, but I'm going to read the whole thing because I think she lays out the case pretty well. So I guess my problem is it might be a fair judgment, but conceptually that is precisely what the Bruin test prohibits, that we don't credit the judgment of the modern legislature about who is dangerous and who needs to be disarmed as a result. The entire point I thought of the Bruin test was to say that the only thing the modern legislature gets to do is follow the judgments of the founding era legislature around who was dangerous and who gets to be disarmed. So I think your argument sort of falls apart under the Bruin test to the extent that you are saying the reason why there are these historical analogs is because the historical legislature was making the the same kind of determination that they were making a determination that these people, habitual drunkards, were dangerous. And you see, the modern legislature, Congress, is making the same kind of dangerousness determination and so therefore we have a match. And what I'm saying is that that can't work because the modern legislature, under our Bruin test, which again note Justice Jackson hates, only gets to do the policy judgments of the historical ones. So we have to see that the historical legislature, going back to Justice Gorsuch's point, was making a determination that someone who only drinks or takes an intoxicant once every, you know, other day and is not doing so while he is using the firearm can be disarmed. And if we don't see that, then the fact that today's Congress thinks that that person is dangerous is irrelevant under the Bruin test. And she goes on to say, and I guess I'm concerned that Bruin and Rahimi are going to be allowing for arbitrary identifications of analogues and producing inconsistent results. You were here in January with respect to the Wolford case when you argued that historical. This is the Hawaii gun case that we talked about in December, David, when you argued that historical anti poaching laws were different enough from what Hawaii was doing that it's unconstitutional. Here you are arguing that historical laws that have nothing to do with guns, very little to do with unlawful users of intoxicants, as you know, was going on in the history, are similar enough to cause this law to be unconstitutional. I don't understand how this works anymore in a meaningful way.
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B
She's got a point. Now, nobody who listens to AO regularly is going to think is that that statement is going to surprise. That I just said is going to surprise anyone who listens to ao. But I thought that was a very succinct explanation of why this is a problem. But when I look at this case, Sarah, let me put my disagreement with you in this context. I feel like a lot of we really haven't wrapped our minds around whether gun ownership really truly at its core is a right or a privilege. So if it's a right that is rooted in sort of this fundamental notion of the human right of self defense, this is sort of a fundamental human right of self defense, then you're going to look at it from the standpoint of, well, you're, you're going to have to have a showing that you're going to have to show me, and this is the way I have to put it, dangerous weapons and dangerous people. You're going to have to show me that I'm dangerous before you can deprive me of that right now what I think about when I was looking at this and thinking about now what Is it about taking an Ambien that makes you any, that that's not been prescribed to you that makes you any more dangerous than somebody who, say, speeds a lot, but somebody who speeds a lot is objectively a more dangerous human being than somebody who took their spouse's Ambien. And yet we would not say about somebody who speeds all the time, has a long record of speeding tickets. Well, you, you can't exercise your right of self defense because you have broken the law. And it's, it seems to me that we have to really get into our minds that the Second amendment is rooted in a fundamental human right. And then that, that then gives us the framework for going forward. As opposed to guns are dangerous, owning a gun is a privilege. And there's a whole list of things that gonna put out there to say that even if you, if you do this thing, even if it's not dangerous, and it doesn't show that you're dangerous, you can lose access to this human right. That's how I process it. So I don't see illegality as a synonym with dangerousness, and only dangerousness should deprive you of, of this right, if that makes sense.
- [17:10]
A
Here's where I'm going to tend to agree with you. And this was a point that Justice Kavanaugh made quite well. When we look at where most state laws are, they are either specific about addiction. There was some discussion over what the difference is between addiction and, you know, this sort of habitual user stuff is unlawful user. I actually thought this was sort of helpful. It's the same amount of drugs. One person has a compulsion to use that amount of drugs, and one person chooses to use that amount of drugs. But the amount of drugs we're talking about are probably the same under either of those. But we could imagine, under your point, David, there being a difference in how we want to treat someone who cannot stop using that amount of drugs versus someone who is choosing to and thinks, you know, I'm still able to hold down my job, I'm taking care of my family, versus someone who does not have the choice, the ability to be able to stop. Justice Kagan used an example of ayahuasca, a wildly hallucinogenic drug that is not addictive. You know, we can presume this wasn't necessarily her point, but like we can presume someone choosing to use ayahuasca is, you know, putting their gun away and their car keys and everything else, whereas someone who is addicted to using a drug, maybe not. So we look at all these State laws, they tend to focus on addiction and, or they tend to focus on someone being convicted of using illegal drugs, selling, you know, illegal drugs, whatever that is. And I admit that that is what I'm trying to get at is this idea that if you cannot conform yourself to not using illegal drugs, then you shouldn't have a gun. Because I think there is a per se dangerousness there. While I think that Congress needs to narrowly tailor it, I don't think it has to be perfectly tailored. And so, yes, the Ambien example is a good one at the outer ends. But again, that person could go get a prescription for Ambien. They're choosing not to. They are choosing to use an illegal drug habitually, not just like they couldn't sleep that one night. And that, yeah, maybe they don't need to be possessing a gun. But David, how do you think this case is actually going to come out? Based on the oral argument, Is it
- [19:24]
B
acceptable to lump this into the Calais case and say, I don't know, I. If you push comes to shove, I think they're going to probably. Even though this, this seems like a tough vehicle, it's just difficult to draw lines short of illegality and illegality. So, for example, if you're going to have the occasional Ambien or the, you know, the regularly dipping into your husband's Ambien jar, which I like that that was the actual phrase used in the oral argument. It made me imagine like you, you've got a candy jar, you've got an ambient jar, and do not mix the two. Anyway, I felt like the line drawing problem here, Sarah, is going to be the problem that it's just easier, it's just easier to say, okay, illegal drugs. And because some of the drugs which came up during the oral argument, not all of these are the same. Taking your spouse's Ambien at night is fundamentally different from like PCP or methamphetamine. They're not all the same in dangerousness. And so if push comes to shove, Sarah, I don't know. I feel like the line drawing issue is really out there and that kind of your default position, which is it's illegal. You don't have to do illegal stuff if you want to own a gun. You know, come on. And we're not asking a lot. Right. And so I feel like that that may win the day. What do you think?
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A
Oh, I think they're going to strike it down and say there has to be some tie to dangerousness and that
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B
this is too, we're Being unusually solicitous of each other's. Each other's? Yes. Yeah.
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A
Alito and the chief seem to be on my side, slash, agree with you on the outcome. But I think. I mean, Gorsuch, our libertarian, is flying the libertarian flag high. Barrett seemed to agree, by the way. Barrett, who I consider actually to be sort of a, like, the normie, the most normal person on the court in a lot of respects, had never heard of ayahuasca. So after Justice Kagan walks through Ayahuasca, Barrett says, I was just going to give you a variation on Justice Kagan's hypothetical. I have never heard of the drug that she was. Is that real?
- [21:32]
B
I love it. But, Sarah, in her defense, it was shockingly recent for me to know what it was. I mean, like, there was a tv, a show starring Nicole Kidman where she runs a clinic where they're, like, microdosing, and everybody slowly gets more insane. It's a very ominous show. And that's when I was introduced to, like, I knew stuff was out there, but the. The name of it.
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A
I just want to be clear, David. I never thought you were the normal one.
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B
Oh, okay. I misunderstood this whole exchange.
- [22:02]
A
I am looking forward to this decision. Obviously, the outcome itself will be interesting. But more for how we're going to keep distinguishing Bruin from Rahimi, where, remember, you know, Bruin, 6:3 on the shall issue versus may issue licenses in New York. Rahimi is the domestic violence restraining order. Rahimi's then 8:1, with Justice Thomas being the sole dissenter, saying, you guys aren't doing text, history, and tradition. Right. The guy who wrote Bruen creates the text, history, and tradition test. And he's saying, no, that historical analog needs to be pretty freaking perfect. And, you know, Gorsuch is like, well, I mean, it's just close enough. Like, it's. It's pretty close. Sure. There were domestic violence, restraining orders. And, you know, Justice Jackson walks through this as well, is like, what are we doing here? And you know what we've described, David, as the. What I've described as the vertical problem. Right. How exact does it. Is it just dangerousness because that doesn't do much work, or is it intoxicants? Ooh, that's not great here. But then you have the Alito point, which I've made as well, which is, what if the problem didn't exist? But this is a problem for all of Second Amendment jurisprudence in my mind, because, sure, cocaine didn't exist. Marijuana in its, you know, use that we use it for now didn't exist. But you know what else didn't exist? Assault rifles.
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B
Right.
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A
You know, any of the type of high powered guns, not just in terms of the speed with which you can fire bullets, but also the deadliness of those bullets are quite different.
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B
The range, the velocity, I mean. Yeah, yeah.
- [23:41]
A
So like you're proving too much. Justice Alito. The founders also didn't have the gun problem, just like they didn't have the drug problem. It's, it's, it's problems, new problems all the way down.
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B
That's why I really, I really do think that text, history and tradition is going. There was a lot of celebration I think in the second amendment world when text, history and tradition was first articulated. I honestly wonder how rights protective it will ultimately end up being versus a tears of scrutiny approach because we're doing this right now, which just feels very loosey goosey. Is that the proper appropriate legal term? It's very uncertain. I hope that your prediction is correct and my prediction is wrong. But where do you see the three liberal justices falling on this?
- [24:28]
A
Oh, I just think, remember in Rahimi they write sort of this like huh, huh, we told you this was going to be a problem in Bruin. So sure, we agree with you on this, but your test sucks. I think we're going to see something like that. What's great about this term is that Wolford, the Hawaii case on whether Hawaii may presumptively prohibit concealed carriers from going into private property. Like where the default is, if you remember in that case, David, I love that they're getting decided the same term because the tests have to match.
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B
Right.
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A
And we did have those anti poaching laws which seem like a much closer analog than the habitual drunkard laws. Even though I think the vibes theory would say that you strike down the Hawaii law and uphold the drug user law. But the text history and tradition test comes out differently than the vibes in those two. And that's exactly what I want. I want the clash of vibes versus doctrine to actually discuss, discover more about what the doctrine is. All right, David, when we get back, we're moving dockets from the merits docket over to the interim docket. Two decisions, one really shocking to me and one the least shocking interim docket decision of the entire interim docket in the history of the interim docket. We'll be right back. I don't usually think much about a mattress until I sleep on one that truly feels different and that is the Sedona elite from Brooklyn bedding right away it feels stable and solid, like something designed to last for years, not just a short stretch. And that level of thoughtful design really comes through in everyday use. Every Brooklyn Bedding mattress is thoughtfully designed and assembled in Arizona, which means no middlemen, just quality craftsmanship at a fair price. They have options for every type of sleeper, including hard to find sizes if you tend to sleep hot. Their Glaciotex cooling covers and copper infused temperature regulating foam are built to keep you comfortable through the night. Brooklyn Bedding is also endorsed by the American Chiropractic association for proper spinal alignment. Made 100% fiberglass free and comes with a 120 night risk free trial. And with awards like Best Mattress from CNET and Best Hybrid Mattress from Wirecutter, it truly stands out. Go to BrooklynBedding.com and use my promo code advisory at checkout to get 30% off site wide. This offer is not available anywhere else. That's brooklynbetting.com and promo code advisory for 30% off site wide. Support our show and let them know we sent you after checkout. BrooklynBetting.com, promo code advisory this episode is brought to you by Nespresso introducing Virtuo up, the latest in a long line of innovation from Nespresso. It's innovation you can touch, sense and taste in every single cup. With a three second start, easy open lever and dedicated brew over ice button, it's even easier to enjoy your coffee your way. Sip for yourself. Shop Vertuo up exclusively@nespresso.com all right, David, do you want to start with the shocking or the not shocking?
- [27:36]
B
Let's start with not shocking because there's actually not a huge amount to say about it, even though it is a quite, I mean, publicly salient case.
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A
This is the Bonta case. California has a law in effect that bans schools from disclosing a student's gender transitioning at school unless the student consents. And the facts in these for the plaintiffs in these cases were, you know, pretty heartbreaking. I'll just read one example, although there were many examples given. Teachers sued, Parents sued. Here's John and J. Poe. They have a religious objection to gender transitioning but were not told by their daughter's school when she began to present as a boy and use a male name and male pronouns during her seventh grade year. In parent teacher meetings, no one told the pose about their daughters transitioning or referred her using the male name and pronouns that were used at school. At the beginning of their daughter's eighth grade year, she attempted suicide and was hospitalized. Only then did her parents learn from a doctor that she had gender dysphoria and had been presenting as a boy at school. Just months after being discharged, the Poe's daughter was re hospitalized and held there involuntarily because she was a risk for self harm. At a new school in ninth grade, she once again began identifying as a boy. Contrary to the Poe's instructions, teachers and school officials continued to use a male name and pronouns for their daughter, citing their obligations under California state law. So, David, this was. Drumroll. A 6, 3 decision along ideological lines. There's three different things to discuss here. One, the merits of the decision. So in this case, they are upholding a district court injunction preventing the law from being enforced. The ninth Circuit had reversed that, so they're reversing the ninth Circuit and allowing the district court injunction to go back into effect. So we have the merits of this. The merits of whether parents. Whether schools can withhold information from parents that the parents ask for and the school can say, like, nope, we're not going to tell you. It actually appeared to be close to 90 on the merits, potentially. There wasn't a lot of disagreement on whether this law was constitutional. Then there was the question on substantive due process. Is that what we're doing here? Because that was a dirty word up until, I don't know, yesterday. And then what we're doing on the interim docket, the fact that this was not a merits decision, but it was an interim decision. So, David, let's start on the merits. There is, by the way, a written per curiam opinion from the majority and then a concurrence by Justice Barrett. And then we have a dissent from Justice Kagan. Okay, so just from the per curiam majority opinion, basically one on the free exercise. You guys didn't understand. Mahmoud. The parents can opt out of books that violate their religious beliefs in schools. What did you guys think we were saying? And the parents who assert a free exercise claim have sincere religious beliefs about sex and gender, and they feel a religious obligation to raise their children in accordance with those beliefs. California's policies violate those beliefs and impose the kind of burden on religious exercise that Yoder found unacceptable, citing Mahmoud. Indeed, the intrusion on parents free exercise rates here, unconsented facilitation of a child's gender transition is greater than the introduction of LGBTQ storybooks that we considered sufficient to trigger strict scrutiny in Mahmood. You guys, Ninth Circuit don't understand. Mahmood. Let us spell it out for you. This Is a joke. Right? Like what were you thinking? And then on the due process question, under long established precedent, parents, not the state, have primary authority with respect to the upbringing and education of children. Pierce versus Society of Sisters. The right protected by these precedents includes the right not to be shut out of participation in decisions regarding their children's mental health. Okay, so David, just on the merits, I find this law so egregious. As a parent, it sort of stuns me that even in the bluest of blue states this would be considered acceptable.
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B
So Sarah, you know how we talk about whether something is Bonkers Town or in the suburbs of Bonkerstown or the exurbs. This law was downtown Bonkerstown, like the heart of it. Even before Mahmoud. Even before Mahmoud. Like the idea that you could look at the history of precedent around parents rights in public schools and say that like to take the example of this, these parents who they learned their child was transitioning at school when the child had a suicide attempt and that was their first inkling and the child had been doing it openly. I mean that is remark. Those facts are absolutely remarkable, just remarkable. And this sort of goes back to the right privilege discussion that we're talking about other earlier. If you have a fundamental right in the care and upbringing of your children, you can only have that. You can only have the material aspects of that right revoked when there is proof that you, you, the individual are abusive. You, the individual have done something terrible.
- [33:00]
A
That's important here for those listening. The law, it was universal no matter what. Unless the child says affirmatively, you can tell my parents. The school may not tell the parents. The student does not have to allege that their parents would even disapprove or that there would be potential dangerousness or harm to child if the school told them. That is a very, very different scenario and would be a very different law. Actually very different. Simply a minor having to make a decision over whether to tell their parents something.
- [33:29]
B
And the justification for these laws rested on basically a presumption of abuse. That if the reason why this exists is to protect trans kids from their parents potential abuse in with no requirement of a showing that the parents were actually abusive. Now if there was a showing that parents had been actually abusive, as we have traditionally defined abuse and by the way, disagreeing with gender identity politics is not abuse or gender identity ideology is that that is not the definition of abuse. Right. And so if you have evidence that parents are abusive, as we understand abuse. Yeah. Then different things start to lock in. You've got. You're you're at this point, you've got mandatory reporting obligations. You're. There's a lot of things that should be unfolding in that moment if you know that a parent is abusive. But in this circumstance, to essentially take away from parents access to information that's a fundamental importance about their child because you're just going to presume that they're abusive. That's why I say suburb. I mean, not suburbs. Downtown, downtown, Bunkerstown. With this, with this law, it's also
- [34:38]
A
this fundamental difference in philosophy over what the role of government is to the individual, which is sort of fascinating. It reminds me back to that Life of Julia cartoon that happened during the Obama administration. You know, at every step of Julia's life, the government is there to step in to help her or prevent a problem. This law presumes that it is the primary caretaker to children is the government. When, like, even if you thought philosophically that was a good idea, it's just literally not what's happening in terms of who actually is raising children. Class sizes are too big to think that that teacher is raising. Each child in that class knows their mental health. And obviously in the case of the suicide attempt, the information the parents could have had would have been pretty relevant because they have things that they see that are going on at home.
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B
Right. Exactly. Anyway, exactly.
- [35:30]
A
On the merits, tragic. But to be clear, nobody, the dissent, majority concurrence, nobody defends this law on the merits, constitutionally or morally. Okay.
- [35:41]
B
Right.
- [35:41]
A
So let's talk about substantive due process, David. Or to put it, you know, in. In terms that we've talked about in this podcast, more often, unenumerated rights. This idea that there are things in the Constitution that are fundamental and that you do have a constitutional right to the government not to interfere in those rights, but they didn't list them. The problem has always been that judges then all of a sudden find a lot of unenumerated rights that fit with their current cultural, moral, political likes of the day. And this is how substantive due process gets a bad name. Starting with Lochner and going through the Warren Court and Griswold and this idea that the 14th Amendment says the government can't take life, liberty or property without the due process of law. Protected substantive rights because we decided to totally like, hole the privileges and immunities clause in some deep, dark closet in the basement. We did a whole podcast, David, on this a couple months ago. Highly recommend it if you want a deeper dive historically into substantive due process and unenumerated rights and the Lochner era and Then how that's a bad name with liberals, then it becomes a good name with liberals, Substantive due process in the Warren Court, then a bad name with conservatives. And basically, that's where we are, David. We have conservatives, Justice Barrett writing in this concurrent saying, yep, we're doing substantive due process. What's your point?
- [37:04]
B
Fascinating. Okay, so this really is going back to the argument over what Dobbs meant, truly. Did Dobbs mean the end of Roe, or did Dobbs mean the end of Roe and the rights secured by substantive due process? And now Alito wrote quite clearly in the actual opinion that we're not touching that other precedent. This gets to. I will never forget this. You know, I'm coming in and I'm doing an event this summer or the summer that Dobbs was decided, and I, like I was called it. We realized all of our panelists on this are pro choice. We need a pro life panelist. Will you do it? Yes, I'll do it. And so I go in and defend the decision in front of a very, very, very, very pro choice crowd. And when I was explaining the abortion elements of the decision, they were largely kind of, you know, just taking it in like, okay, I want to hear this explanation. When I then said, I do not think, based on what Alito said, that this will mean the end of the other substantive due process cases like in Obergefell, the crowd reacted audibly, angrily towards me. It was almost as if they were saying, oh, you're just blowing smoke to try to make us feel better that this is not actually what's going to happen. This court is going to roll back all of that substantive due process. And I said, I, I truly did not think so. I, I did not think that the court was going to be overruling all of that prior precedent. And Justice Barrett comes in here and basically gives the same answer that I gave a couple of years ago, which is, we haven't touched that. We haven't touched that. It's very interesting how these things work. On the one hand, you know, if you're, if you're looking at this, a lot of, A lot of folks who are on the cultural left would be upset with the outcome of this case. But on the other hand, if you're, I don't know if you've seen this. There's just this new legal effort to try to overturn Obergefell that's sort of unrolling right now. And if you're advocating for that, the Barrett concurrence is not your favorite day, because the Barrett concurrence is basically saying, no, we're at least from her perspective, pre existing, non row substantive due process precedent remains locked in.
- [39:17]
A
Yeah, I mean, I think her point was Roe failed on stare decisis factors, not substantive due process isn't a thing. If you just look at Roe, there was no history of abortion being an unenumerated right. So substantive due process, as substantive due process did not justify Roe or Casey, which, you know, largely replaced Roe. And that's how you get Dobbs. It has nothing to do with substantive due process. And yes, conservatives have a beef with substantive due process being sort of a, you know, whatever the judge wants type intermediate scrutiny idea in reverse where you go, like, find rights that feel good. And maybe we do have a problem with substantive due process, but Dobbs wasn't about that. If there was any unenumerated right. That was fundamental at the founding, surely it was the idea that parents get to raise their children and not the government. So we may argue over substantive due process at the edges. We may argue whether it's in the Due Process Clause or the Privileges and Immunities Clause, but this ain't that case. So, yeah, thanks for playing.
- [40:25]
B
Yeah, exactly. What Justice Barrett does very well is say, look, here was the test for substantive due process, and Roe failed it. It was improperly applied. There is no history of abortion as a. As a right that the Founders would have contemplated as being implicit to the concept of order, liberty, much less existing and being understood as one of those unenumerated rights. So, you know, it really was the case. I my view of. Of Dobbs. It really was the case that this was just different. And guess what? I think everyone's known that from the beginning, including, you know, Ruth Bader Ginsburg when she was criticizing Roe back in the 1990s. This was different.
- [41:11]
A
By the way, it matters who joined this concurrence by Justice Barrett, because I said this was a 6, 3 case, but it actually is a little more complicated than that. We have the per curiam from the majority, so we don't know who authored that. Justice Barrett joined by the Chief justice and Justice Kavanaugh. So we're back to our traditional 333 model with our 3 in the middle. Then we have a dissent written by Justice Kagan, joined by Justice Jackson. And then we have Justice Sotomayor saying, you know, she disagrees with the grant. And you have Justice Alito and Thomas saying they agree with the grant. Why didn't Justice Sotomayor join the dissent? Why didn't Justice Gorsuch say Anything at all, we don't really know. I can assure you that the reason Justices Alito and Thomas didn't join that concurrence have everything to do with substantive due process. And again, if you're really into that sort of thing, definitely go read the concurrence, but read it with an eye toward why Alito and Thomas didn't join it, what they're saying about substantive due process that Alito and Thomas find objectionable. All right, David, let's talk about this last portion that's important in the Banta decision here, and that's the interim docket part of this. Justice Kagan's dissent, I think, lays out a very strong case that even if. And this is the perfect case for it, Right. We all agree that this law is downtown Bonkerstown. But this isn't a merits decision. This isn't, you know, a cert grant. We had options to grant cert. You didn't grant any of those yet. And instead you've reached into this case that's been going, you know, up and around since 2023. The district court is the only one who's done a full merits review of this. The ninth Circuit, on their emergency docket panel opinion, stopped the injunction, so stayed the injunction to allow the law to continue to be effective. The plaintiffs in this case are also trying to go to the 9th Circuit en banc at the same time they went to this court's emergency docket. Like, what are we doing here, guys? I thought she made a pretty persuasive case on this, David. The one thing that I thought she was really unpersuasive on was her complaints about the majority locking themselves in with a written opinion. Like, you definitely can't have it both ways. I cannot hear complaints about how, you know, these unexplained orders. You're not giving guidance to the lower courts. You're giving too much guidance to the lower courts. You're locking yourself in when you haven't heard the merits and you haven't had oral argument. I think it's a very strong case to make that the interim docket is now going to be the docket of choice because the court is willing to step in in situations like this. Very unpersuasive, though, that, like, that's why they shouldn't write anything. Like, I agree that they maybe shouldn't write stuff. But you guys lost that argument when you complained, called it the shadow docket, the emergency docket, for years because they weren't writing anything and telling you how all the justices voted. And now that they're doing that, you're complaining about that, that's not going to work.
- [44:18]
B
Yeah, I mean, I thought she made a lot of really good points. I really did. I mean, I think the desire of the court would be less emergency docketing, more writing. Like, I think that if you have a consensus, the consensus would be fewer emergency docket cases. When you take the emergency docket cases, at least write something. But where is the right line between more and less? Because there's going to be some that are going to have to be taken. I mean, there's just going to be some numbers. And I think what Justice Barrett was saying here is, you know, while we're looking at this case, you actually have parents who are being cut off from access to information about their children. There is a degree of urgency here that's different from the urgency you might have about disputes around money or back pay or, you know, budgetary figures or things like that. That, yeah, maybe we don't need to intervene when we're talking that quickly, when we're talking about dollars and cents versus fundamental rights. And maybe, you know, and that could be worth articulating as a doctrine as to, okay, we're going to do it less, but these are the circumstances under which we will do it less. Because you get close to this when you say from going from more to less, you're always going to be vulnerable to the, oh, how convenient. The fewer cases that you're taking happen to be the cases you most want to take, which would be sort of like that cynical outside critique.
- [45:49]
A
Well, when we've talked about the prongs for the interim docket, the prong that we were fighting about was the likelihood of success on the merits that, you know, if you think this case is likely to come out one way you want them to take it, and if you think it's not going to come out that way, you don't want them to take it. Basically just the merits analysis. What I really like about this, again, there's no disagreement on the likelihood of success on the merits for the merits case if it were to come back to the court. The disagreement here is perhaps on the irreparable injury prong. Justice Barrett thinks the irreparable injury while this case is pending is just too great. I'll note, however, the case was pending on the emergency docket for more than a couple months. So, okay, maybe. And, you know, look, this will take potentially years to get back up. So years and months are very different. I'm not disputing that.
- [46:43]
B
Or they could have converted to a petition for cert and scheduled it.
- [46:47]
A
That's true. The other thing that I will note is that the ninth Circuit's decision to stay the district court injunction was the ninth Circuit's emergency docket. So the other problem with jumping in or complaining about the jumping in here is like, so why can the 9th Circuit do an emergency docket reversal of the district court but the Supreme Court can't? Because if you remember back to that Idaho versus Poe case, or Poe, I think it was Idaho versus Poe. And there they said, well, when the two lower courts, the dissenters said when the two lower courts agree with one another, we shouldn't step in. Well, what about when the only court to look at the merits is on one side and then the 9th Circuit emergency docket flips that lower court and the Supreme Court wants to go back to the status quo set by the only court to review the merits. That could be a standard all on its own. But I think you revert back again to what Justice Kavanaugh said, which at the end of the day, a lot of this comes down to likelihood of success on the merits. And I think it's pretty clear that there was an egregiousness factor here that's doing a lot of work that is implied but not explicitly said.
- [47:54]
B
There's something that's consistent between, well, when you're looking at this case, and both Mahmoud and, and this case have come in circumstances where you have conservative or more conservative parents who are intervening to block sort of very, very left leaning policies. As you see that, that life of Julia kind of version of the state directing the lives of people rising on the right. Because what's very interesting about the change in the right is it seems to be moving much more to the left in terms of theories of state power. In other words, how much do we want to be in this position where we're telling you how to raise your kids, we're directing you as to sort of more of what is our version of the moral path, etc, as we're seeing the return of the Ten Commandments and all of this stuff into schools, you're going to have more left leaning parents running into court looking for our libertarianism, Sarah, and appealing to our libertarianism. And I really want people to think as they're thinking about their very urgently felt underlying world. They're very urgently felt and sincerely felt underlying worldview, whether it's rooted in religion, you know, a more secular humanistic view, et cetera, that really, really think hard about how much you want the power of the state to be invested in your opponents who possess the same deeply felt, sincerely felt impulses from the other direction. And how, how much do you want the state to have the. To give them the authority? And we're beginning to, like, I think, discover in real time, Sarah, once again, the values of federalist number 10, which is we could fight all day about whose worldview is going to. Is going to win. And we're never going to conclude that fight. We will never conclude it. We're all too different. We all have too many competing worldviews. So at the end of the day, we're going to have to come back to figuring out how we're all going to be in this thing together. And that's where the small berry merry band, very disorganized band of libertarians comes waving their flag, saying, now is our time. This is our moment.
- [50:08]
A
So I think I've defended the interim docket about as much as anyone. You know, give these guys some time to figure this out and to come up with their factors and standards. All of this is pretty new for reasons that we've discussed in the past. Well, David, we're going to talk about the next interim docket decision. But I got to say, in both of them, I thought the merits were correct and the choice to intervene on the interim docket was probably incorrect. I think in the end I agreed with Justice Kagan on the Bonta case that I would have at least let the en banc 9th Circuit decide this case and then potentially intervened on the emergency docket, but I would not have stepped in now, again, not because of the merits, but because of the interim docket factors and sort of discouraging. You know, think of it as like school. Like, the more the teacher intervenes in playground stuff, the more the kids are gonna keep running to the teacher to intervene in playground. Stu, maybe I am dealing with this now, so I just wouldn't want to intervene that much. And this gets us to our next interim docket decision. David, the New York redistricting question, this is the one that I was shocked by. Shocked. We have a state court order that, according to Justice Alito and I tend to disagree, blatantly discriminates on the basis of race. The New York Supreme Court, the state's trial level court, ordered the New York Independent Redistricting Commission to draw a new congressional district for the express purpose of ensuring that minority voters are able to elect the candidate of their choice. And basically that sets off a panic because we're about to be in the middle of a midterm election based on these maps. So to make this a very complicated story, overly simple, they run around to all the New York state courts and are like, blah. What? No. Help us. This is like totally crazy. And some of the New York courts are like, no. Some of them are like, I don't know. We're not going to do this right now. Come back later. We're not sure. Flim flaming. Flim flaming. They also go to federal court. There's some flim flaming around there. And they go to the Supreme Court. And I thought there is no way that the Supreme Court is going to step in and do anything with what is so clearly a state court issue right now. Let them get a final state court appellate decision and then the Supreme Court can deal with it. That is not what happened, David. Instead, once again, we appear to have a 6:3 along ideological lines decision where the Supreme Court stays that trial court order to redraw the maps. Here's Sotomayor and dissent. If this court's grasping reach extends even to a non final decision of a state trial court, then every decision from any court is now fair game. By granting these applications, the court thrusts itself into the middle of every election law dispute around the country. Even as many states redraw their congressional maps ahead of the 2026 election. It also invites parties searching for a sympathetic ear to file emergency applications directly with this court without even bothering to ask the state court first. There is much reason to question whether the majority will exercise its newfound authority wisely. But there is no reason to question this. If you build it, they will come. And here's Alito in response, in his majority or concurrence, Justice Sotomayor's 13 page dissent is most notable for what it conspicuously omits even the most tepid imaginable defense of the constitutionality of the trial court's orders. Instead, her disquisition ducks that issue and demands that we wait until the completion of a series of events that would likely run out the clock before we could review the order. That would provide a way of achieving what full review would not permit the use of an unconstitutional district in the November election and the election of a member of the House of Representatives whose entitlement to the office would be tainted. That is a prospect this court should not countenance. So same case David. They're not disagreeing on the merits in this case whether the map is an unconstitutional racial gerrymander. They're disputing whether the court should intervene to do something about it now or let the, in this case, state court process run its course before potentially intervening, whether on the interim docket or the merits docket, which would be after the midterm election. David, once again, I'm left thinking, boy, I'm not sure I want more interim docket cases. And I would have let this be even understanding the consequences for an unconstitutional, racially gerrymandered district to elect a member in 2026 based on a state court ruling. The same way, I think I would have let that California law continue to be in effect for a few more, maybe many more months before intervening and let the 9th Circuit run its course. I guess I'm with the dissent on those, even though the merits are undisputed by anyone.
- [55:10]
B
I think I'm with you. I think you've persuaded me, especially since we have seen them convert these petitions into essentially convert them into cert petitions and grant them and resolve them relatively expeditiously. We actually, at the end of the day, resolved the tariff issue, got resolved relatively expeditiously, not as expeditiously as people wanted, but relatively expeditiously, certainly by the standards of federal court cases. So I think I'm with you on this, and I'm interested here in the merits because here's what seems to be happening, Sarah. If you gerrymander a map and you say it's for racial reasons, even if there's a distinct partisan advantage being gained by the racial gerrymander, then you're going to lose. If you did the exact same gerrymander and you said it's for partisan reasons, but you used race to create the part to create the partisan change, it seems as if the court's going to go, that's okay. So as long as you have like a fig leaf of partisanship around it, the because they're, they're taking the hands off of the partisanship on the partisanship basis, if the racial gerrymander can be cast as a partisan gerrymander, then it's going to be acceptable. But it looks like, at least based on the very brief discussion here, they were just so explicit that this was for increasing minority representation more so than partisan representation. But again, this is the area that we've both talked about. We don't know exactly where the court is going on this.
- [56:50]
A
All right, David, as I said, I really thought they would leave this be. I mean, there's Purcell, there's sort of the exhaustion, if you will, through state courts. There's the interim docket part. So you know, the interim docket still evolving. I'll just put it that way.
- [57:05]
B
Yeah, very much so.
- [57:06]
A
I'm pretty good at predicting merits stuff. Not great still at predicting the interim docket.
- [57:12]
B
Yeah. The curve comes in sometimes. Yes.
- [57:15]
A
Yeah. All right, David, when we get back, the as promised conversation about the 1973 War Powers Act. We'll be right back.
- [57:27]
B
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- [57:40]
A
100 million.
- [57:42]
B
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- [57:59]
A
So, David, we promised to talk about this 1973 War Powers Resolution because everyone's sort of throwing it around in the ether when it comes to Iran. But if you actually talk to folks who have spent a lot of time on the Hill, they will make this face like the sort of cringing face, like, oh, I don't want to talk about that. We're not really sure we like it. We're not sure it's a great idea or what the idea really is, maybe. And if you talk to anyone in the executive branch, literally anyone going back to Nixon forward, they will all say it's unconstitutional. So they don't care. Now, as we said, David, this isn't going to court. So when we say something's unconstitutional, it's sort of a funny thing to say, because who. Who's saying it's unconstitutional? Nobody with a rope. In 1973, this was a federal law passed over President Nixon's veto. They overcame the veto. You don't see that very often. And basically, it says that the President must notify Congress within 48 hours of deploying forces, and it limits combat to 60 days without a formal declaration of war or specific authorization. Like an aumf. David, is this is just relevant at all? Does this matter anymore?
- [59:16]
B
Well, it. Absolutely. Well, let me put it this way. Throughout most of my adult life, what we have seen as Presidents sort of treat the. There's this weird treatment of the War Powers Resolution as if it is. I don't believe in it, but I'm going to comply with it. Justice. Just to avoid the drama, right? Because they're. They're introducing forces into hostilities. They consult with Congress now. And this has typically been for very relatively short intensity engagements. So if you're doing a bombing raid or if you're doing a very quick operation, etc, that you've kind of had this kabuki theater. And look, we've had many, many, many examples of introduction to use of force. I'm not going to over generalize and, and say presidents have always complied or never or whatever, but there's been at least compliance or degree of compliance begrudgingly for a long time. There is a flawed way of looking at the law and a proper way of looking at the law, but the flawed way of looking at the law has sort of been the practice. So the flawed way of looking at the law is when a president decides to employ the armed forces, here is your procedure to do it. And this is sort of shortened as 60 days of free war, Sarah, that, that, that if once I decide as commander in chief to employ the forces, then so long as I jump through these hoops in the War Powers Resolution, then I'm in the clear. Like, why are we having this debate? I've complied with the War Powers Resolution, whatever. And I think that's a flawed reading of the law for a reason that's pretty clearly laid out in the law itself where it says that the constitutional powers of the president as Commander in Chief to introduce United States armed forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances are exercised only pursuant to 1, a declaration of war specific, 2, specific statutory authorization, or 3, a national emergency created by an attack upon the United States, its territories or possessions, or its armed forces. So in essence, what they're saying is, no, this isn't 60, this isn't saying this is 60 days of free war. That in these very specific circumstances, here is our process and procedure, but that's not the way that it's been treated. And I think this leads to something that we saw from Jack Goldsmith and his creed of corps that we discussed in the last podcast where he kind of calls it just like a dead letter. Like what does this even, you know, what are we even doing here? And so I would say this. I think if you look at the War Powers Resolution, it is not 60 days of free war. No question at the text of this is not 60 days of free war. Zero indication from the text. The way that it has been employed is more like 60 days of free war the way it's been employed. Now what that means to me, Sarah, is that whatever meaning Whether it is 60 days of free War is our shorthand for I get to decide when to introduce whatever meaning you want to attach, Whether it's the 60 days of free war or in these hyper restrictive circumstances. This is what you do these. Only in these restrictive circumstances can you even introduce armed forces into the mix. And here's the process. That meaning has to be, that meaning has to be supplied by Congress, through Congress acting on that meaning. If you're going to respond to the introduction of use of force, then Congress to, to apply that meaning has to act on that meaning. And that's where again we're put putting that ball back into Congress's court. Guys, I would say to every member, every Senate staffer, House staffer who listens to this podcast, here is our message. We're your best friend because we are trying to make your boss more powerful every day. That is all. We, we wake up in the morning and we just, Sarah and I, we just think how can we make your boss more powerful? And so that's what we're trying to do here.
- [63:21]
A
I think that's right. You know, we also talked about that executive order on assassinations on the last podcast and you said there was a really easy answer. Israel did it. I, I did want to expand on that as well while we're on the subject, because there is a conspire part of that. Yeah, yeah, yeah. It's like the exact reverse of what you just said, David. EOs are by the president, therefore they can only apply to not the president and executive branch employees. So an executive branch employee by that EO is barred from on their own, you know, decision making authority, assassinating someone. Yeah, but if the president tells them to, it's fine. Also, it's an EO and I hope we've made the point that EOs are worthless. Totally, entirely worthless. So that's also a simple answer, but an expanded answer for all other categories of assassinations that may come up where Israel didn't do it. David, we have my, I mean it really is my. You know, I always have a sleeper case from the term that like becomes my favorite case. My sleeper case of the term is almost certainly this pun case on fifth amendment takings. We're going to save that for next time. As well as Lisa Blatt telling the chief that maybe he should be medicated. So got plenty to talk about in the next advisory opinions. We did get opinions on Wednesday morning. They were not sleeper cases. They were just asleep. So sorry.
- [64:54]
B
But there was one that limited immunities a little bit. That's all we need to say about it. Like in my ongoing crusade. Crusade against immunities. There was some limitation of immunities. Yay.
- [65:04]
A
So David got that out of it? I guess. More to come on the next advisory opinions.